Wendy Joan Hill v Goodna Street Life Inc

[2021] FWC 6180

[2021] FWC 6180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Wendy Joan Hill
v
Goodna Street Life Inc
(C2021/3349)

DEPUTY PRESIDENT LAKE BRISBANE, 22 OCTOBER 2021

Application for an unfair dismissal remedy – whether the Applicant was dismissed – the applicant was not dismissed – jurisdictional objection upheld – application dismissed

[1] Wendy Joan Hill (theApplicant) lodged an application with the Fair Work Commission (theCommission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment with Goodna Street Life Inc (theRespondent).

[2] It was uncontroversial that the Applicant had been employed by the Respondent since on or around 8 March 2021. What is in contention is how her employment came to an end. The Applicant stated that she was dismissed on 21 May 2021, effective immediately. The Respondent disagrees and asserts that the Applicant was never dismissed. It is that jurisdictional question that I must resolve.

[3] Directions were issued in respect of the filing of submissions. The material for the Applicant was her Form F8, a statement filed on 24 August 2021 and a photo of her employee separation certificate. The Respondent filed a Form F8A but provided no further material. The hearing took place before me by Microsoft Teams on 14 September 2021, after having been adjourned to allow for the Respondent’s work commitments. The Applicant appeared for herself and Steven Purcell, the Respondent’s Vice President, appeared for the Respondent.

Was the Applicant dismissed?

[4] Section 386(1) of the Act relevantly provides thata person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[5] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (BUPA v Tavassoli), the Full Bench expanded on the content of the two limbs:

“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable (sic) result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”    1

[6] The Full Bench went on to outline the relevant authorities in relation to the second limb. In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment. 2 While it may be that some action by the employer brought the employment to an end, it is not necessary to show the employer held that intention.3 It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.4 Put another way, did the employer’s conduct have the probable result of bringing about the end to the employee’s employment or leaving the employee with no effective or real choice but to resign?5 It is necessary to conduct an objective analysis of the employer’s conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.6 In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”7

Respondent’s material

[7] The Respondent submits that the Applicant was not dismissed. Mr Purcell told his version of events at the hearing. He was not sure of many of the dates, however, I have tried to summarise his evidence below.

[8] Mr Purcell’s evidence was that sometime before the May meeting, all staff had been required to undergo a random drug testing occurred in accordance with the Respondent’s policy. This was not uncommon. On the day in question, Mr Purcell could not see the Applicant and went to look for her. He found her vacuum cleaner but could not find her. He checked the Respondent’s cameras and found that the Applicant had left the premises. She did not return that day. There was not specific reason why the drug testing occurred on that day or why the Applicant was to be tested. It was just part of the Respondent’s routine practice. Given the nature of the Respondent’s business, they take the drug policy seriously. A cleaner had previously been terminated for using drugs with a resident of the facility.

[9] Mr Purcell stated that the Applicant arrived a couple of weeks later to hand in her shirt, saying that she was quitting. Mr Purcell told her that they did not want to see her go and explained that drug testing is just a practice that everyone at the Respondent participates in. They take a strong but understanding approach to drug use. For example, a current employee maintains their employment while also participating in the Drug and Alcohol program. He said, at the Respondent, “we care for people”. He told the Applicant to think about whether she really wanted to quit.

[10] A couple of days later the Applicant returned to the Respondent’s organisation to have a discussion with Mr Purcell. During that meeting, Mr Purcell raised a couple of issues relating to her employment, including:

(a) complaints made about the Applicant’s language and behaviour towards clients. One complaint had been made by another staff member who had overheard her swearing at the client and there was another complaint from two other clients at another property;

(b) an issue about her driver’s licence given that the Applicant was driving to properties as part her duties. This had been brought to his attention by the Applicant’s sister, with whom she was having a dispute;

(c) arranging a random drug test.

[11] When the prospect of the drug test was raised, the Applicant became upset and offended. She took her belongings and walked out of the office.

[12] Mr Purcell understands that the Applicant subsequently had a conversation with the leader of the Respondent’s organisation, Helen, who told the Applicant that she had not been fired and that she should return to work to finish her conversation with Mr Purcell.

[13] The following exchange between Helen and the Applicant was adduced during the hearing:

Helen: “…And in fairness Steve had not finished talking to u when u walked out so if u feel hard done by make an appt and go talk to him”

The Applicant: “Hellen my children just knew how much I loved working that’s all and they seen their mum cry I can’t and won’t do that I was just saying to you my children were excited to see mum smiling every day is all and I walk out because Steve basically hurt me with all those accusations I know he had to say what was said to him but it hurt me deeply like it allways does Hellen being accused of stuff is all… You do understand I ain’t threating or attacking you or Steve don’t you”

Helen: “I do but he has a job to do and they were accusations yes but accusations are not truths are they so sit with him and maybe colleen and work thru it if you like the job [unclear] I would”

[14] Unfortunately, that conversation as produced to the Commission did not show when it was sent. However, it was seemingly accepted by both parties that it was after the meeting between Mr Purcell and the Applicant on 21 May 2021.

[15] The Applicant did not do return to continue the conversation with Mr Purcell. She did come back to return her uniform and keys. At that time, Mr Purcell stated that he appreciated her and had loved having her working at the Respondent. He offered to help her find future employment with another support service or his cleaning company or else would be happy to provide a reference.

[16] During that meeting, she also asked Mr Purcell to sign her Centrelink form. In completing the separation certificate, Mr Purcell ticked “other” instead of “employee left voluntarily”. In evidence at the hearing, he admitted that he was not sure what to write. However, he was mindful that what he wrote might impact her ability to access Centrelink. He did not want to stop her from gaining access to Centrelink, so ticked “other”.

[17] In short, the Respondent submits that the Applicant was not terminated by the Respondent. She walked out. Though no formal resignation was submitted, Mr Purcell accepted her rejection of the Respondent’s offer (communicated through Helen) to come back and talk to him as a resignation. The Respondent further asserts that the Applicant has been appropriately paid.

Applicant’s submissions

[18] The Applicant submits that she was dismissed from her employment on 21 May 2021.

[19] By way of background, the Applicant described the Respondent as an organisation that provide accommodation to homeless people who have mental health, illicit drugs, and alcohol related issues. She commenced her employment on 8 March 2021 but was not provided a contract or letter of appointment. Though the Applicant was engaged as a cleaner, she says she was also asked to also counsel clients, teach them personal hygiene and the rules of staying at the facility, as well as assist them with their mental health and anger management issues. She says she was also asked to provide clients with eviction notices. The Applicant was never provided with any training about how to deal with clients in this way and was not qualified to do so. In putting her in that position, the Applicant says that the Respondent exposed her to a risk of suffering a workplace injury.

[20] The Applicant’s evidence was that she was discriminated against for belonging to the “Hill” family – the Applicant’s sister and nephew were living at the premises – and was regularly reminded of the behaviour of her family members. The Applicant told the management not to speak to her about these family members.

[21] The Applicant’s evidence was that sometime in the week commencing 26 April 2021,

Helen put a foam cup on the bench and said that all staff were required to be drug tested. The Applicant said she should this was a joke, given the informal, unprofessional and unhygienic manner with which she says it was raised. She says that she never actually refused the test but rather did not undergo the test because she continued cleaning. She thought no more of it. The Applicant’s evidence was that she had never been told that staff had to undergo drug testing or been provided any policies and procedures that indicated that was the case. Nor had she seen anyone be tested at the Respondent. The Applicant says that had she known it was a requirement, she would have done the test. The Applicant further stated thought that it was her right to refuse the test.

[22] The Applicant said that on 5 May 2021, there was an incident with her great nephew, who was a resident at the facility. He had spoken to her rudely. When she did not respond, he started verbally abusing her. She ignored him and walked into the kitchen. Given he has “mental problems and drug and alcohol issues [she]… didn’t see anything by it”. She thought he would walk off, calm down and move on. When she was leaving work, a worker from a neighbouring business came and told her that he had seen her great nephew kicking her partner’s car door in. The Applicant reported this to police.

[23] The situation between the Applicant, her sister (the mother of person about whom she had made the police report) and the great nephew deteriorated. They were residents of the Respondent. The Applicant said that she did not feel supported at work and was upset by the events. She says she did not want to have any family conflict or continue having this issue in the workplace. She thought she could put in place professional boundaries, but it became clear her family could not do the same.

[24] As to the question of dismissal, the Applicant states that on 7 May 2021, following the escalating situation with her family members, the Applicant attended the Respondent’s place of business and tried to hand in her shirt and key, along with her resignation to Mr Purcell. She recalls that on her way out, Helen stopped the Applicant and said if she stayed, they could all try and sort all this out as she did not want to lose the Applicant as she was a good worker.

[25] On 21 May 2021, the Applicant attended a meeting with Mr Purcell. She says that he gave four reasons why he wanted to end her employment. Namely, that:

(a) she had refused to do a drug test;

(b) a client had a melt down when told by the Applicant to remove his bike from inside the room;

(c) the Applicant had spoken to a client inappropriately (family drama); and

(d) she had failed to provide a copy of her driver’s licence.

[26] The Applicant states that she was not offered an opportunity to respond to any of the allegations. She was very upset about all this as she I loved her job and could not understand why all this was happening. She struggled to make sense of what Mr Purcell was saying about wanting to end her employment as all of this was not black and white but rather each allegation had stories behind them. The Applicant left the meeting crying but said that she would like her termination letter and separation certificate emailed, which she was assured could be arranged.

[27] To the extent that she now responds, the Applicant states that she had not previously been told about the Respondent’s workplace drug and alcohol policy or processes. The Applicant felt that the sudden request for her to undertake that test to be insulting and degrading, particularly given she has no history of drug use. When Helen first put the foam cup on the bench and said that everyone had to get a drug test, the Applicant thought it was a joke. She thought it was unprofessional and unhygienic to announce and carry out the tests in this way. She says that had she been informed about the policy when her employment commenced, she would have obtained further information and been prepared for it.

[28] With respect of the allegation of her speaking inappropriately to a client, she was provided with no particulars. That is, she was not told what comments she was alleged to have made, to whom or when.

[29] As to the failure to provide the driver’s licence, the Applicant does not have a driver’s licence, but does have an 18+ card with her photograph issued by the Queensland Government. She was not given an opportunity to produce any identification document. It must be noted though that the issue here though was that she was not licenced to drive a vehicle but had allegedly driven clients home. Mr Purcell, in his evidence noted that this was an oversight and should have been checked when she commenced her employment.

[30] In the afternoon of 21 May 2021, the Applicant had returned home and calmed down. She messaged Mr Purcell and Helen requesting that a formal termination letter be sent to her with every pay slip she had earned.

[31] On 22 May 2021, the Applicant again returned to the Respondent’s place of business to return her shirt and keys to Helen. She says that Mr Purcell was there and handed her a bundle of paper. She assumed they were job flyer. It was only later when she went through the pile that she say he had given her a separation certificate for Centrelink, which had been dated 20 May 2021. The reason for termination was marked as “other”, with the description reading “failure to meet requirements of policy and procedures”.”

[32] The Applicant also states that she has not been paid all her entitlements or severance pay and has not received a termination letter.

Consideration

[33] I have had regard to the submissions and evidence given by both parties in their written material and at the hearing. The chronology of events and plethora of factors are not as clear as one might hope. However, based on the evidence before me, I am satisfied that following the meeting on 21 May 2021, the Applicant decided not to return to work for the Respondent. Though the process was not perfect, the Respondent through Helen, communicated with the Applicant via Facebook after that meeting. Helen stated that Mr Purcell had not finished talking when the Applicant left and she should go and talk to him. The Respondent asserts that this clearly shows that the Applicant had not been terminated and that the Applicant could return to work and continue her conversation with Mr Purcell so that she could continue her employment.

[34] I am conscious that Helen’s message is not as unequivocal as suggested by the Respondent (particularly the reference to “if u feel hard done by”). However, in the context of the Applicant’s response to that message (as reproduced above) and the other evidence provided by the parties in this matter, I am satisfied the Applicant chose not to continue the conversation with Mr Purcell. Rather, she arrived on 22 May 2021 to return her uniform and keys, the clear implication being that she would no longer continue working for the Respondent. Mr Purcell, quite reasonably, interpreted that as a resignation. His decision not to record it as such in the separation certificate, while perhaps erroneous, was an attempt to not impact the Applicant’s Centrelink payments.

[35] Accordingly, I find that there was no dismissal. I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

 2   Ibid.

 3   Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 4   Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].

 5   O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006) [23].

 6   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 7   Ibid.